Co-prosecutor knew of Hernandez

He now says he should have told his partner

CORPUS CHRISTI, Texas — When lead prosecutor Steve Schiwetz told a jury that a man named Carlos Hernandez was a "phantom" and not the killer of gas station clerk Wanda Lopez, his co-prosecutor sat nearby and said nothing.

Yet Ken Botary, a veteran of the Nueces County district attorney's office, was, by his own account, well aware of Hernandez and his reputation for violent acts here.

Three years earlier, Botary had prosecuted another murder case and lost after defense lawyers argued that Hernandez was the real killer. Botary interviewed Hernandez before that trial and cross-examined him on the witness stand. Botary was even called to testify about his interview of Hernandez.

Just before trial, Carlos De Luna's lawyers identified Hernandez as Lopez's real killer. From that point on, any information about Hernandez was critical to the defense.

Botary knew that a prosecutor has a duty to disclose evidence favorable to the defense and that failure to do so can be cause for an appeals court to set aside a conviction and order a new trial.

Schiwetz said Botary never told him about Hernandez. By remaining silent, Botary allowed Schiwetz to misinform De Luna's jury.

In a series of interviews, Botary offered changing explanations of how he handled the information about Hernandez.

"I got the name right off the bat," Botary said. "I knew Carlos Hernandez was a dangerous man."

But Botary, now a criminal defense lawyer in Corpus Christi, says he may not have associated the Hernandez mentioned by De Luna's lawyers with the man he had interviewed and cross-examined in the earlier murder case.

He acknowledged that had he been De Luna's lawyer at the time, he would have wanted to know the information. "I think I should have told Schiwetz," Botary said.

In Botary's defense, Schiwetz noted that at the time of De Luna's trial, prosecutors in Corpus Christi carried heavy caseloads, so his colleague simply may not have made the connection.

But, Schiwetz added, if Botary had told him, he would have alerted the defense and never called Hernandez a phantom.